Complex Fight in
Senate Over Curbing
Military Sex Assaults

Senator Carl Levin, at the Capitol on Thursday, aims to keep prosecution of sexual assault cases within the chain of command.Credit
Christopher Gregory/The New York Times

WASHINGTON — When Senator Carl Levin of Michigan stripped a measure aimed at curbing sexual assault in the military out of a defense bill this week, it was widely seen as a trampling by a long-serving male committee chairman on female lawmakers seeking justice for victims.

But the truth reflects a more complex battle driven by legislative competition, policy differences and the limits of identity politics in a chamber where women’s numbers and power are increasing.

The vote to replace the measure offered by Senator Kirsten E. Gillibrand, Democrat of New York, in favor of a more modest provision pushed by Mr. Levin, the Democrat who is chairman of the Armed Services Committee, did not break down along gender lines: of the seven women on the committee, three, including a fellow Democrat, Senator Claire McCaskill of Missouri, sided with Mr. Levin. “I think all of us need to acknowledge that this isn’t a gender issue,” said Senator Deb Fischer, Republican of Nebraska, at a recent hearing.

Nor was it particularly partisan. Senator Ted Cruz of Texas and Senator David Vitter of Louisiana, two of the most conservative Republicans on the committee, sided with Ms. Gillibrand, while seven Democrats and an independent peeled away.

Ms. Gillibrand’s measure, which she is likely to revive on the Senate floor this fall, would give military prosecutors rather than commanders the power to decide which sexual assaults to try, with the goal of increasing the number of people who report crimes without fear of retaliation.

Mr. Levin’s bill requires a senior military officer to review decisions by commanders who decline to prosecute sexual assault cases. Although his measure would change the current system, it would keep prosecution of such cases within the chain of command, as the military wants.

Mr. Cruz did not buy it. “The data indicates that there is persistent reluctance to report sexual assault,” he said. “Senator Gillibrand made an effective case.”

Unlike so many Congressional policy battles that end with an empty pot, the search for sexual assault legislation is likely to result in significant policy changes to military laws. All told, more than a dozen sexual assault provisions were approved by the committee this week and are headed for the Senate floor.

On Friday, the House passed a defense bill that contained some of the broadest changes to military law intended to curb and more strongly punish sexual assault. The bill would strip commanders of their authority to dismiss a finding by a court-martial, establish minimum sentences for sexual assault convictions, permit victims of sexual assault to apply for a permanent change of station or unit transfer, and ensure that convicted offenders leave the military.

Many lawmakers say commanders wield too much power on both the front and back end of prosecutions. A Navy judge ruled this week in a pretrial hearing that two defendants in military sexual assault cases could not be punitively discharged because President Obama, in public remarks, exercised “unlawful command influence” when he said offenders should be “prosecuted, stripped of their positions, court-martialed, fired, dishonorably discharged. Period.” The decision was first reported by Stars and Stripes.

“Statements by high officials have always been problematic,” said Eugene R. Fidell, who teachers military justice at Yale Law School. “On the one hand, people do look to them to take a stand on things; on the other hand, we are administrating justice here.” Should Congress pass a measure that would require sexual assault offenders to be dishonorably discharged, it would not necessarily render this type of contention moot, Mr. Fidell said, because “those comments would have a distorting effect on the question of conviction.”

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The measures in the Senate include a mandatory review of decisions by commanders not to prosecute sexual assault; making retaliation a crime; and subjecting sex offenders to automatic dishonorable discharges. Commanders would also no longer be able to overturn jury convictions unilaterally.

“What’s been lost in all this is that for the first time ever we are going to have strong legislative changes that are going to make a real difference in curbing sexual assault,” said Senator Susan Collins, Republican of Maine, a co-sponsor of Ms. Gillibrand’s bill.

“This was a legitimate policy dispute that resulted in significant, meaningful reforms.”

A few lawmakers from both parties have pursued changes to military law to combat the problem of sexual assault in the military, to little avail, for years.

But a recent series of events — including startling sexual assault data released by the Defense Department, a spate of high-profile cases and a handful of lawmakers who have perceived that their pursuit of the issue would be politically advantageous — put a stronger spotlight on the issue.

Ms. Gillibrand, who is among the most savvy of Senate Democrats in identifying emotionally-resonating policy issues, attached herself to the effort last August and then in March oversaw the first Senate hearing in nearly a decade on sexual assaults in the military. Her efforts got a boost from several committee members who joined her in pressing members of the military every time they came to the Hill to testify this spring, even if the topic was the defense budget.

Mr. Levin, a longtime supporter of the military, was pressured to take action but, perhaps harboring few illusions about changing the system, hinted early on that he would not defy Defense Secretary Chuck Hagel and the majority of military brass who do not want the commanders’ powers removed in sexual assault cases. “It is the chain of command that can and must be held accountable if it fails to change a military culture,” Mr. Levin said in one hearing.

Ms. Gillibrand, undaunted, continued to build a new coalition and fight for the more far-reaching — but unlikely — measure. Other lawmakers, seeing that her measure was headed for trouble, began to sponsor their own.

“I think that Kirsten created an environment that allowed us to make a whole host of reforms that, frankly, a year ago most people would have said, ‘That’s impossible,’ ” said Ms. McCaskill, who offered several of her own attention-grabbing measures, and who viewed Ms. Gillibrand’s measure as an impossibility.

At a hearing a few weeks ago, Mr. Levin compiled a witness list of people who supported keeping the prosecution of sexual assault cases within the chain of command as Ms. Gillibrand pushed to hear from more victims’ advocates. She and others took the witness list as a sign that Mr. Levin was stacking the deck. Last week, even as Ms. Gillibrand’s measure cleared a subcommittee, Mr. Levin informed her that he would be offering his own amendment to replace hers.

For some of Ms. Gillibrand’s allies, the committee’s actions fell short. “I wanted to be sure that women understand that they can express themselves in cases of assault,” said Senator Kay Hagan, Democrat of North Carolina. “I am worried about the consequences here.”

A version of this article appears in print on June 15, 2013, on Page A13 of the New York edition with the headline: Complex Fight in Senate Over Curbing Sexual Assaults in Military. Order Reprints|Today's Paper|Subscribe